Yesterday (October 17, 2016), Douglas Cardinal lost his bid to enjoin the Cleveland Indian baseball club from using its name and logos in Toronto during the American League Championship series against the Blue Jays. In 2003 and 2010, I published columns in The Lawyers Weekly on this controversy over racist sports team names. As some readers of this blawg will not have seen those pieces, I reproduce them here. Sadly, they remain timely. Here is the column first published on October 17, 2003. The 2010 column follows in the next post.

The Houston Honkies. The Pittsburgh Pale Faces. The Oklahoma Ofays. The Washington Whiteys. Surely Colleen Kollar‑Kotelly tried some of these on for size. Which makes it all the more baffling how the U.S. District Court judge overturned a ruling by the Trial Trademark and Appeal Board (TTAB) that the mark “Washington Redskins” was invalid under the Lanham Act.

Chief Wahoo today & yesterday

In 1992, seven native Americans complained to the TTAB about the mark as used by the professional football club headquartered in the District of Columbia. On Sept. 30 Judge Kotelly ruled that there was insufficient evidence for the TTAB to decide (in 1999) that the mark “may disparage native Americans or bring them into contempt or disrepute.”

Probably the judge is right not to rely on judicial notice (her own experience and opinion). But that is no reason to abandon common decency and sense.

It is difficult to know which irony to cite first. There is The Language Police, for instance, Diane Ravitch’s recently-published study of the guidelines educational publishers and governments apply in U.S. textbooks and school testing. Ravitch found “huts” banned as “ethnocentric.” Calling a spade a manual excavating implement, the authorities suggest “small houses” instead.

On similar reasoning, “fanatic” and “extremist” are taboo in favour of “believer” or “follower.” “Soul food” shows bias, and “elf” must replace “fairy” because sometimes “fairy suggests homosexuality.” “Middle East” is Eurocentric and “boys’ night out” sexist.

Yet Judge Kotelly rules that the linguistic evidence is ambiguous on whether “redskin” is derogatory. The TTAB wrongly concentrated on the general public’s purported view, she says, instead of on how the “referenced group,” American first nations, felt about the term. The plaintiffs’ survey sample was too small, the seven plaintiffs did not represent native Americans in general, the dictionary evidence did not explain how the compilers determined what was offensive or racist. And so on.

Her honour does not consider that the Redskins began life as the Boston Braves, or that sports franchises change their names all the time, with no commercial damage. Not long ago, the Washington Bullets basketball team became the Wizards. Some consider even “Braves” offensive. Schools in several U.S. states have stopped using it in sports team names, along with Warriors, Chieftains, and the like – never mind that, unlike “Redskins,” such names pay genuine homage, relying on historical fact. They tend to stereotype less than the Fighting Irish, say, or even Vikings or Trojans. Yet Redskins persists while Braves is banned.

Nor did the district court consider that in 2002 the California Department of Motor Vehicles recalled the vanity licence plates of former Redskins fullback Dale Atkeson. The DMV explained that Atkeson’s 1REDSKN and RDSKN2 plates were “offensive to good taste and decency.” Too bad Redskins lawyer John Paul Reiner didn’t feel the same when he argued before the TTAB that “redskins” was no more offensive than “colored,” as in the National Association for the Advancement of Colored People.

In my own lifetime, in the name of inclusiveness “colored people” evolved into “Negro,” then “black,” and now “African-American.” The fact that the same respect is denied the continent’s first peoples suggests that we are not so civilized as we think. Like an ugly boil, it tells us that racism subsists in our body politic. In this respect, it is hard to credit Judge Kotelly’s companion ruling that the time for native Americans to object was in 1967, when the Washington franchise first registered the mark. That was 36 years ago, when racial segregation was a part of everyday life.

Today’s Canadian Oxford Dictionary takes a descriptive approach to language: it does not prescribe usage as correct or incorrect. However, even it characterizes “redskin” as dated and offensive, just as “colored people” is. And it takes pains to show why we cannot say the same of “Indian,” despite the fact that the term derives from history’s worst navigational boner – made, of course, by a pale face. In a special note the COD explains that while the use of “Indian” has “declined because it is thought to reflect Columbus’s mistaken idea that he had landed in India in 1492, it is common in the usage of many Aboriginal people and embedded in legislation… . It is also the only clear way to distinguish among the three general categories of Aboriginal people (Indians, Inuit, and Metis).”

Of course, the same cannot be said of the Indian trademark used by another sports franchise, the Cleveland Indians baseball club. I’ve always found the team’s logo, the big-toothed, smiling warrior dubbed Chief Wahoo, friendly and fun, but there’s no two ways about it: He’s gotta go, along with the Redskins mark. As one view puts it, Chief Wahoo has become the “little red Sambo” of the 21st century.

Anyway, the real question is why this issue ever got to the courts. Why do we have to go to law, cap in hand, for common decency? Walter Goldbach, the creator of Chief Wahoo in those less inclusive days of 1946 (when Goldbach himself was only 17) has suggested that the Cleveland franchise approach native American artists for a new logo. Vernon Bellecourt, president of the National Coalition on Racism in Sports and Media in the U.S., proposes that the team hold a contest in which the public provides a new name. The Redskins could follow, making it clear that the sports field is where people of all backgrounds put their differences aside in the spirit of fair play and mutual respect.

Doing the right thing could be a golden PR opportunity, if only the moneyed interests would embrace it. If only U.S. law were truly colour blind. They could trademark it across the world.

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